EMPLOYEE AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of February, 1998, between
American Bank of Bradenton, Bradenton, Florida ( "the Bank" ) and Xxxxx X.
Xxxxxxxxx, ("Employee").
WHEREAS, the Bank is a state bank, regulated by the Florida Comptroller's
Office, Division of Banking, insured by the Federal Deposit Insurance
Corporation, and located in Bradenton, Florida, and
WHEREAS, the Bank wants to employ the Employee as Senior Vice President/Chief
Financial Officer; and
Whereas, the parties desire to enter into this Agreement setting forth the terms
and conditions of the employment relationship of the Bank and the Employee;
NOW, THEREFORE, it is AGREED as follows:
I. RELATIONSHIP ESTABLISHED AND DUTIES
1. The Bank hereby will employ the Employee as Senior Vice President /
Chief Financial Officer to hold the title of Senior Vice President /
Chief Financial Officer, and to perform such services and duties as the
President and Chief Executive Officer may, from time to time, designate
during the term hereof. Subject to the terms and conditions hereof,
Employee will perform such duties and exercise such authority as are
customarily performed and exercised by persons holding such office
subject to the general direction of the President and Chief Executive
Officer, exercised in good faith in accordance with standards of
reasonable business judgment.
2. Employee accepts such employment and shall devote his full time,
attention, and efforts to the diligent performance of his duties herein
specified and as an officer of the Bank and will not accept employment
with any individual, corporation, partnership, governmental authority,
or any other entity, or engage in any other venture for profit which
the Bank may consider to be in conflict with his or its best interest
or to be in competition with the Bank's business, or which may
interfere in any way with the Employee's performance of his duties
hereunder. Any exception to this must be made by notification and
approval of the President and Chief Executive Officer.
II. TERMS OF EMPLOYMENT
1. The initial term of employment under this Agreement shall continue for
three ( 3 ) years unless such is terminated pursuant to the terms
hereof or by the first to occur of the conditions to be stated
hereinafter. This Agreement will be automatically extended each year
for a one-year period after the initial term unless either party gives
90 days contrary written notice to the other. The term previously
stated notwithstanding this contract shall be terminated by the earlier
to occur of any of the following:
a. the death of the Employee:
b. The complete disability of the Employee. "Complete disability"
as used herein shall mean the inability of the Employee, due
to illness, accident, or other physical or mental incapacity
to perform the services provided for hereunder for an
aggregate of ninety, (90) business days within any period of
one hundred eighty-one (181) consecutive days during the term
hereof; however disability shall not constitute a basis of
discharge for cause;
c. The discharge of Employee by the Bank for cause. "Cause" as used
herein shall mean:
(1) Such negligence or misconduct as shall constitute, as
a matter of law, a breach of convenants and
obligations of Employee hereunder;
(2) Failure or refusal of Employee to comply with the
provisions of this Agreement;
(3) Employee being convicted by any duly constituted
court with competent jurisdiction of a crime
involving moral turpitude;
(4) Employee violating standards outlined in employee
handbook;
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(5) The initiation of a proceeding against employee by
the Bank's primary federal or state regulator, the
result of which may by the Employee's suspension or
removal pursuant to 12 U.S.C. 1818(e) or like state
statute.
Termination of employee's employment shall terminate his designation as
an officer of the bank. In the event of Employee's termination with
"cause", the Employee shall be entitled to payment of salary and
benefits through the date of termination. The Board of Directors, in
its sole and absolute discretion may pay the Employee severance pay
when the Employee is terminated for cause but such severance pay shall
in no circumstance exceed three (3) months of Employee's base salary
hereunder due and payable on the date of termination. In the event of
termination due to death or complete disability, the employee is
entitled to severance pay equal to one (1) months pay for each full
year employed by the Bank. In the event Employee is terminated without
cause under this Agreement, Employee shall be entitled to twelve (12)
months severance pay at his then current rate, due and payable on the
date of termination.
III. COMPENSATION
For all services which Employee may render the Bank during the term
hereof, the Bank shall pay the Employee, subject to such deductions as
may be required by law:
1. Base Salary. An annual salary of Ninety Thousand and No/100
Dollars ($90,000.00)payable in weekly installments and subject
to such deductions as, until January 1, 1999. Thereafter, the
Base Salary shall be adjusted each January 1, during the term
of employment, to reflect the increases, if any, in the
Consumer Price Index for Urban Wage Earners and Clerical
Workers, U.S. City Average ( 1982-1984 = 100 ) published by
the Bureau of Labor Statistics of the U.S.Department of Labor
(the "Price Index" ). Annual adjustments shall be made by
determining the percentage increase in the Price Index over
the previous twelve-month period ending August 31. Merit-based
increases to salary shall be determined by the President and
Chief Executive Officer. The Base Salary, so increased, shall
not thereafter be decreased during the term of employment.
2. Performance Bonus. If earned by Employee, the Bank shall pay
to the Employee, each fiscal year during the term of
employment, a performance bonus in accordance with Schedule A
attached hereto and by reference made a part hereof. Such
bonus shall be paid to and by reference made a part hereof.
Such bonus shall be paid to Employee within thirty (30) days
after the end of the fiscal year.
IV. OTHER BENEFITS
1. The Employee shall be entitled to participate in any plan of
the Bank relating to stock options, stock purchases, profit
sharing, group life insurance, medical coverage, education, or
other retirement or employee benefits that the Bank may adopt
for the benefit of its employees.
2. The Employee shall be eligible to participate in any other
benefits which may be or become applicable to the Bank's
executive employees, including but no limited to an expense
account to reimburse Employee for documented business
expenses, the payment of reasonable expenses for attending
annual and periodic meetings of trade associations as approved
by the President and Chief Executive Officer, and any other
benefits which are commensurate with the responsibilities and
functions to be performed by the Employee under this
Agreement.
3. At such reasonable times as the President and Chief Executive
Officer shall in his discretion permit, the Employee shall be
entitled, without loss of pay, to absent himself voluntarily
from the performance of his employment under this Agreement,
all such voluntary absences count as vacation time, provided
that:
a. The Employee shall be entitled to an annual vacation
of four (4) weeks per year.
b. The timing of vacations shall be scheduled in a
reasonable manner by the Employee. The Employee shall
not be entitled to receive any additional
compensation from the Bank on account of his failure
to take a vacation; nor shall he be entitled to
accumulate unused vacation time from one calendar
year to the next.
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c. In addition to the aforesaid paid vacations, the
Employee shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of
his employment with the Bank for such additional
periods of time and for such valid and legitimate
reasons as the President and Chief Executive Officer
in his discretion determines. Further, the Board of
Directors shall be entitled to grant the Employee a
leave or leaves of absence with or without pay at
such time or times and upon such terms and conditions
as the Board, in its discretion, may determine.
V. CHANGE OF CONTROL
1. If during the term of this Agreement there is a change of
control ( COC ) of the bank, the Employee shall be entitled to
termination or severance pay in the event the Employee's
employment is terminated, except for just cause as defined in
Section II., paragraph 1c, within ninety ( 90 ) days prior to
or after a change in control. In the event the Employee is
involuntarily terminated as a result of the COC, the Employee
shall be entitled to receive his salary through the last day
of the calendar month of termination. In addition, the
terminated Employee shall receive an amount equal to twelve
(12) additional month's salary as severance pay, such payment
to be made one-half (1/2)at the time of termination and
one-half (1/2) in monthly installments over six months. If the
Employee voluntarily terminates his employment as a result of
or after the change in control, the Employee is entitled to no
severance payment.
2. The following items are automatically considered due and
payable in the event that a change of control occurs and the
Employee is involuntarily terminated:
a. Non-forfeitable deferred compensation shall be paid
out in full.
b. In the event that the Employee is a participant in a
restricted stock plan, or shared option plan or the
like, and such plan is terminated involuntarily as a
result of the COC, all stock and options shall be
treated as required by the plan.
3. For purposed of this Agreement, "control" shall refer to the
acquisition of twenty-five (25) percent or more of the voting
securities of the Bank by any person or persons acting as a
group within the meaning of Section 13 ( d ) of the Securities
Exchange Act of 1934,if such acquisition would be subject to
prior notice under the Change in Bank Control Act, or prior
notice to any federal or state regulator. The term "person"
refers to an individual, corporation, bank, bank holding
company or other entity.
VI. POST TERMINATION COVENANTS
1. If during the term hereof Employee shall cease employment
hereunder for any reason, following such termination Employee
agrees that he will not, without prior written consent of the
Bank:
a. Furnish anyone with the name of, or any list or lists
of customers of the Bank or utilize such list or
information himself for banking purposes; or
b. Furnish, use, or divulge to anyone any information
acquired by him from the Bank relating to the Bank's
methods of doing business; or
2. It is understood and agreed by the parties hereto that the
provisions of this section are independent of each other, and
the invalidity of any such provision or portion thereof shall
not affect the validity or enforceability of any other
provisions of this Agreement.
3. Bank and Employee agree that in the event Employee violates
the above restrictions, the Bank shall be entitled to
injunctive relief, as well as damages, and the Bank shall make
no further payments to Employee under this Agreement.
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VII. WAIVER OF PROVISIONS
Failure of any of the parties to insist, in one or more instances, on
performance by the others in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or
relinquishment of any right granted hereunder of the future performance
of any such term or condition or of any other term or condition of this
Agreement, unless such waiver is contained in a writing signed by or on
behalf of all the parties.
VIII. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida. If for any reason any
provision of this Agreement shall be held by a court of competent
jurisdiction to be void and unenforceable, the same shall not effect
the remaining provisions thereof.
IX. MODIFICATION AND AMENDMENT
This Agreement contains the sole and entire agreement among the parties
hereto, and supersedes all prior discussions and agreements among the
parties, and any such prior agreements shall, from and after the date
thereof, be null and void. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of
the parties hereto.
X. COUNTERPARTS AND HEADINGS
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instruments. The headings set
out herein are for convenience of reference and shall not be deemed a
part of this Agreement.
XI. CONTRACT NONASSIGNABLE BY EMPLOYEE
This Agreement may not be assigned or transferred by Employee, in whole
or in part, without the prior written consent of the Bank.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and date first above written.
EMPLOYEE:
------------------------ --------------------------------------------
Witness EMPLOYEE Date
BANK:
------------------------ --------------------------------------------
Witness PRESIDENT Date
SCHEDULE A
The Performance Bonus for Xxxxx X. Xxxxxxxxx shall be based upon
achievement of the Return on Average Assets based on the annual budget
as approved by the Board of Directors. The Performance Bonus will apply
based upon the following formula:
ROA 1.00% but less than 1.25 % = 10%
ROA 1.25% but less than 1.50% = 15%
ROA Over 1.50% = 20%
